| People v Novick |
| 2015 NY Slip Op 02022 [126 AD3d 1134] |
| March 12, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ryan Novick, Appellant. |
Cliff Gordon, Monticello, for appellant.
D. Holley Carnright, District Attorney, Kingston (Timothy D. Lawson of counsel),for respondent.
Devine, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered March 6, 2013, upon a verdict convicting defendant of the crimes ofrobbery in the third degree and grand larceny in the third degree.
Defendant was charged in an indictment with robbery in the third degree and grandlarceny in the third degree as a result of his alleged involvement in a bank robbery in theTown of Saugerties, Ulster County. A jury convicted defendant of both charges anddefendant was sentenced to a prison term of 3
Defendant contends that the jury's verdict is against the weight of theevidence.[FN*]Under that analysis, if a different result would not have been unreasonable, we must then"weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Bleakley,69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]; see People v Murphy, 66 AD3d1234, 1235 [2009]). Where, as here, the People seek to convict a defendant as [*2]an accomplice, "the evidence must demonstrate that [the]defendant share[d] the intent or purpose of the principal actor" (People v Rupert, 118 AD3d1126, 1126-1127 [2014] [internal quotation marks and citations omitted]).
The evidence presented at trial, which included testimony from defendant'sgirlfriend, Amanda Muhs, revealed that defendant's associate, John Streb, enteredSawyer Savings Bank wearing a hat and sunglasses and presented a teller with anenvelope and a note stating, "I got a gun. Give me all of the money and no dye pack andyou will not get hurt." After the teller gave Streb approximately $12,000, which included$500 in bait money, he ran back to the getaway vehicle driven by defendant. From there,defendant, Streb and Muhs drove south on the New York State Thruway and stopped at anearby service plaza. After having been notified of the bank robbery and given adescription of the vehicle, police officers located the vehicle in the parking lot of theservice plaza. One witness, Officer Jeremy Rushkoski, averred that he observeddefendant walking toward the vehicle and noticed that he "had a look of surprise andshock." Rushkoski followed and eventually arrested defendant after he attempted to runaway and conceal himself under leaves on the ground. After Streb and Muhs wereeventually apprehended at the service plaza, police officers found an envelope in thevehicle containing more than $12,000, including the $500 of bait money that was tracedback to Sawyer Savings Bank. Additionally, the People presented evidence thatdefendant's DNA was found on items inside the vehicle, as well as on the steering wheel,gear shift and interior driver-side door handle.
Defendant insists that, because Muhs' testimony was so patently incredible, the jurydid not have the requisite proof to have reasonably determined that he was guilty of thecharged crimes. However, that Muhs testified against defendant in exchange for afavorable plea deal does not render her testimony incredible as a matter of law (see People v Mercado, 113AD3d 930, 932 [2014], lv denied 23 NY3d 1040 [2014]; People v Estella, 107 AD3d1029, 1031 [2013], lv denied 21 NY3d 1042 [2013]). Having viewed theevidence in a neutral light and accorded deference to the "jury's superior position todetermine witness credibility," we cannot agree that defendant's convictions werecontrary to the weight of the evidence (People v Anderson, 118 AD3d 1138, 1142 [2014], lvdenied 24 NY3d 1117 [2015]; see People v Robinson, 121 AD3d 1405, 1407 [2014]; People v Merritt, 96 AD3d1169, 1171 [2012], lv denied 19 NY3d 1027 [2012]).
Defendant challenges certain portions of County Court's Sandovalcompromise, asserting that the prejudice caused by permitting the People to inquire abouthis prior convictions outweighed any probative value and ultimately prevented him fromtaking the stand in his own defense. We disagree and determine that the court soundlyexercised its discretion in fashioning an order that would provide the People withopportunities to challenge defendant's veracity and demonstrate his willingness to placehis own interests above those of society, while minimizing any undue risk of prejudice(see People v Olson, 110AD3d 1373, 1375-1376 [2013], lv denied 23 NY3d 1023 [2014]; People v Kirton, 36 AD3d1011, 1013 [2007], lv denied 8 NY3d 947 [2007]; People v Hunter,273 AD2d 500, 502 [2000], lv denied 95 NY2d 935 [2000]).
Likewise, County Court properly granted the People's Molineux applicationseeking to introduce evidence regarding two bank robberies in which defendant hadparticipated on the day before the Sawyer Savings Bank robbery. Testimony regardingthe role that defendant played in these two alleged bank robberies had considerableprobative value in relation to establishing defendant's intent "[g]iven the temporalproximity and clear nexus between [the two prior bank robberies] and the chargedoffenses" (People vTowndrow, 62 AD3d 1028, 1030 [2009], lv denied 13 NY3d 750[2009]).
[*3] Nor do we find any merit indefendant's assertion that comments made during the People's summation shifted theburden of proof to defendant or otherwise constituted a " 'pervasive pattern offlagrant misconduct' " that would compel us to reverse defendant's convictions(People v Jabaut, 111 AD3d1140, 1146 [2013], lv denied 22 NY3d 1139 [2014], quoting People v Sorrell, 108 AD3d787, 793 [2013], lv denied 23 NY3d 1025 [2014]).
Defendant's remaining argument has been considered and found lacking inmerit.
McCarthy, J.P., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although defendant'sgeneral motion to dismiss failed to preserve his legal sufficiency argument, wenecessarily consider the proof in deciding his weight of the evidence argument (see People v Simmons, 115AD3d 1018, 1019 [2014]).